State v. Nicholson

Decision Date17 April 2006
Citation188 S.W.3d 649
PartiesSTATE of Tennessee v. James D. NICHOLSON.
CourtTennessee Supreme Court

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth B. Marney, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Michael Rohling, Assistant District Attorney General, for the appellant, State of Tennessee.

James O. Martin, III, Nashville, TN, for the appellee, James D. Nicholson.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and E. RILEY ANDERSON and ADOLPHO A. BIRCH, JR., JJ., joined.

We granted review to address the following certified question that was reserved by Defendant, James D. Nicholson, following his guilty plea to possession of cocaine for resale: "whether the evidence seized from the defendant in this case should have been suppressed because it was seized pursuant to the warrantless arrest of the defendant for which the police had no probable cause in violation of the 4th Amendment to the United States Constitution and Article One, Section Seven of the Tennessee Constitution as well as the Tennessee Supreme Court's decision in State of Tennessee v. Perry Thomas Randolph, 74 S.W.3d 330 (Tenn.2002)." After being instructed to "hold up" by a detective, Defendant turned and ran. A majority of the Court of Criminal Appeals concluded that Defendant was seized when he was thereafter pursued and apprehended by officers. The intermediate court concluded that, because the detectives lacked reasonable suspicion or probable cause to effectuate such a seizure, the evidence flowing therefrom must be suppressed. After careful review of the record and applicable authority, we concur with the judgment rendered by the Court of Criminal Appeals. Accordingly, we affirm the judgment of the Court of Criminal Appeals, reverse and vacate Defendant's conviction and dismiss the charges. We also emphasize the importance of creating an adequate record for review in cases such as this one.

BACKGROUND

Defendant, James D. Nicholson, was indicted for evading arrest, resisting arrest, criminal trespassing, and possessing with intent to sell or deliver .5 grams or more of a substance containing cocaine. Defendant filed a motion to suppress the evidence seized from him at the time of his arrest.

The only evidence presented at the suppression hearing and contained in this record is the testimony of Detective Ryan Lockwood of the Metropolitan Nashville Police Department. Because of the importance of the actual record to the analysis in this case, we quote the relevant portion of Detective Lockwood's testimony in its entirety:

Q. And were you working at about 11:30, at night, on that date?

A. Yes, I was.

Q. On that day, did you have an occasion to come in contact with Mr. James Nicholson?

A. Yes, I did.

Q. Will you tell the Judge how that occurred?

A. On the seventh of July, we were conducting gang investigations in the John Henry Hale Housing Projects.

Q. And when you say "we," who do you mean?

A. Myself, other intelligence division detectives and West Flex.

THE COURT: Were you in the Intelligence Section or the Flex Unit?

THE WITNESS: Intelligence.

THE COURT: You — so you're in Intelligence?

THE WITNESS: Yes, sir.

THE COURT: Okay. Fine.

A. (By the Witness) We observed a large crowd of individuals around the Henry Place area where it comes down to Charlotte. At that time, we witnessed various hand-to-hand transactions amongst the group, different people coming and going. At that time, the decision was made to speak with several of the individuals, in an attempt to gather gang intelligence. When we, first, initially, approached, several individuals struck out running. I, initially —

Q. All this — when you say "around Henry Hale," is this on MDHA property?

A. Yes, it is.

Q. Okay. And I assume there's no trespassing signs?

A. That's correct. On about every building.

Q. Okay.

A. At that time, I begin to give chase to one subject on foot from a distance. By the time I arrived at the corner, which, actually, put me on Henry Place, that subject had gotten around another corner, out of my sight. At that time, I had stopped running. And I looked to my right, in the general vicinity of where the initial group was standing, to see if — who had stayed. At that time, there was an individual, who we later found out was Mr. Nicholson, walking.

THE COURT: So he's not the one that ran.

THE WITNESS: Not, initially. No, sir.

THE COURT: Okay. Okay. So someone ran.

THE WITNESS: Yes, sir.

THE COURT: From the scene. And then you came back around the scene, or whatever it is. And then that's where you saw this man.

A. (By the Witness) Yes, sir. He was right on — he was coming just a few feet off of the sidewalk or down towards Henry Place at that time. And as I had stopped running, I was taking a few more steps. And I looked to my right where that area was. And at that time, the defendant stopped and looked at me. And I squared more to him and told him to hold up. I was in a raid vest that had Metro patches and insignia on it. And it was clearly visible. As soon as I said to hold up, he turned and ran. I, then gave chase and told him to stop, police. That continued along the sidewalk that runs parallel to Charlotte Pike until he reached a playground type of area.

At that time, Detectives Doak and Wilder were running parallel to me, in an attempt to head — they were a little bit ahead of me, just further up the hill. And they were able to come in contact with the defendant, initially. As they approached, they were also yelling, "stop, police." Also, in like attire as myself. As they did that, at one point, he turned to square off, like to face them. And there was a brief struggle there. That's — as they were still fighting is when I, actually, got to the defendant. He was still struggling when he was attempting to be subdued from kicking and struggling. And as this was going on, we were asking him what his name is and what he was doing there, if he lived there. At that —

Q. Would he answer those questions?

A. At that time, he refused to give his name. He was saying that he was visiting somebody, but he wouldn't say who it was nor did he know where they were at. He, also, said he didn't have any identification on his person. At that time, it was a custodial arrest for trespassing. And —

THE COURT: He was trespassing in the Projects. Is that what, basically, you're saying?

THE WITNESS: Yes, sir.

Q. (By General Rohling) And he wouldn't give you his name. And he couldn't produce any identification.

A. That's correct.

Q. So he was placed under arrest?

A. Yes, he was.

Q. And was he searched?

A. Yes, searched incident to arrest revealed 6.1 grams of crack cocaine, I believe, in his left pocket, which field tested positive for cocaine base. And he had one thousand sixty dollars ($1,060.00), in cash, in his right pocket.

Q. Were you ever able to determine who he was?

A. Yes. It took a while because he refused to cooperate, but myself and another officer had a prior incident involving Mr. Nicholson. And as soon as he realized that I recognized him, he recognized the both of us. And we were able to determine his name was James Davis Nicholson. And he, also, had outstanding warrants at that time.

On cross-examination, Detective Lockwood admitted that he did not initially recognize Defendant, had not seen Defendant earlier that night, and did not have any reports on Defendant. He further testified that Defendant was not engaged in any illegal conduct at the time he saw Defendant.

Upon consideration of this proof, the trial court denied Defendant's motion to suppress. In its written order filed December 4, 2003, the trial court summarized Detective Lockwood's testimony as follows:

At approximately midnight on July 7, 2003, Detective Lockwood, along with other Intelligence Detectives, was investigating alleged gang activity at the John Henry Hale public housing projects. While conducting surveillance, a large group of individuals on the property were seen engaging in hand-to-hand drug transactions.

Detective Lockwood and other officers then approached the group for the purpose of inquiring as to whether they were on the Metropolitan Development and Housing Agency (MDHA) property lawfully. Many individuals in the group, however, fled as Detective Lockwood and the officers neared the scene. Detective Lockwood pursued one of the individuals, but was unsuccessful in apprehending him. Detective Lockwood then returned to the scene and noticed the Defendant walking away. Detective Lockwood called over to the individual to "hold up." The Defendant, however, did not comply and began to run away from the detective, as the other persons had done.

A chase ensued, which resulted in the Defendant being stopped.

(emphasis added). The court concluded:

The Court is of the opinion that Detective Lockwood's initial attempt to speak with the Defendant did not constitute a seizure and was supported by the events that had transpired and the circumstances surrounding those events. The Court notes that the detective was in the area of the MDHA property for the purpose of investigating gang activity. Detective Lockwood testified that he witnessed a large group of individuals together on the property at about midnight, and that some of them were engaging in hand-to-hand drug transactions. Many of the individuals fled the scene when the detective approached to speak with them. Shortly thereafter, the Defendant was observed at the scene, and began to walk away as the detective approached. The Court is of the opinion that the above facts and circumstances provided Detective Lockwood with a basis to approach the Defendant for the purpose of questioning him as to why he was on the MDHA property.

The Court is also of the opinion that...

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